September 15, 2012

As reported in this Denver Post article, headlined "Colorado marijuana legalization initiative leads in new poll," the latest poll data shows continued majority support for a state initiative to legalize marijuana in Colorado. Here are the details:

A majority of Colorado voters support a ballot measure to legalize limited possession of marijuana, according to a new Denver Post poll.

The poll found that the measure, Amendment 64, has the support of 51 percent of likely voters surveyed, compared with 40 percent opposed. Men favor the measure more than women, a common gender split on the issue. But 49 percent of women polled said they support the measure, compared with 39 percent who said they are opposed.

Across every income bracket and in every age group except those 65 and older, more voters told pollsters they support the measure than oppose it, though some of the leads fall within the 4-percentage-point margin of error. Voters younger than 35 support the measure by a margin of 30 percentage points, 61 percent to 31 percent, according to the poll.

The automated telephone poll was conducted Sept. 9-12 for The Post by New Jersey-based SurveyUSA. About 26 percent of those questioned were cellphone-only users, who were shown a questionnaire on their smartphone, tablet or other electronic device. Of voters included in the sample, 34 percent said they are Republicans, 34 percent said they are Democrats, and 30 percent identified as unaffiliated voters.

While several previous polls have found more support for Amendment 64 than opposition, the Post's survey is the first independent poll to find more than 50 percent support.

That may not hold until Election Day — support for a 2010 marijuana-legalization measure
in California polled at 52 percent three months before the election, while the measure ultimately failed with 54 percent opposition. But the results suggest Colorado could be in position to become the first state in the nation to legalize marijuana possession for adults for recreational use.

UPDATE:This article, written by Paul Armentano from the pro-legalization group NORML and headlined "Most Statewide Marijuana Initiatives Lead Solidly In Polls," reports that polls show support for the majority of state marijuana initiatives on the ballot this election year. The piece starts with this helpful review of all the initiatives:

Four of the six statewide marijuana initiatives appearing on the November 2012 ballot are solidly favored among likely voters.

Voters in six states –- Arkansas, Colorado, Massachusetts, Montana, Oregon, and Washington –- will be deciding on marijuana-specific ballot measures this November.

In Massachusetts, voters will decide on Question 3, a statewide proposal that seeks to allow for the physician-recommended possession and state-licensed distribution of cannabis for therapeutic purposes. Arkansas voters will decide on a similar measure, the Arkansas Medical Marijuana Act of 2012. Montana voters will decide on Initiative Referendum 124, which is a referendum on Senate Bill 423 -- a 2011 measure that seeks to restrict the state’s 2004, voter approved medical cannabis law.

Colorado voters will decide on Amendment 64, which immediately allows for the legal possession of up to one ounce of marijuana and/or the cultivation of up to six cannabis plants by those persons age 21 and over. Longer-term, the measure seeks to establish regulations governing the commercial production and distribution of marijuana by licensed retailers. Oregon voters will decide on Measure 80, the Oregon Cannabis Tax Act, which provides for the state-licensed production and retail sale of cannabis to adults. The measure does not impose state-licensing or taxation requirements upon those who wish to cultivate cannabis for non-commercial purposes. Finally, in Washington, voters will decide on Initiative 502, which seeks to regulate the production and sale of limited amounts of marijuana for adults. The measure also removes criminal penalties specific to the adult possession of up to one ounce of cannabis for personal use.

Anyone eager to spend much of the weekend reading a federal capital habeas ruling should be sure to review in full the 150+ pages coming from an Eleventh Circuit panel earlier this week in Hosley v. Warden, No. 09-14257 (11th Cir. Sept. 13, 2012) (available here). This local article about the ruling provides these highlights:

The federal appeals court has upheld a death sentence against man who killed a sheriff’s deputy, even though the condemned inmate’s lead lawyer drank a quart of vodka every day during trial.

The 11th U.S. Circuit Court of Appeals in Atlanta, in a 2-1 decision issued Thursday, said that even though Robert Wayne Holsey’s trial lawyers did not do a competent job, their deficient performance did not prejudice the outcome of the trial. Holsey sits on Georgia’s death row for fatally shooting Baldwin County Deputy Will Robinson after an armed robbery of a convenience store in December 1995.

Holsey’s appellate lawyers noted that his lead trial lawyer, Andrew Prince, drank a quart of vodka every night of Holsey’s trial because he was about to be sued and prosecuted for stealing client funds. During Holsey’s appeal, Prince testified that he “probably shouldn’t have been allowed to represent anybody” because of his condition.

In its ruling, the 11th Circuit said the key question was not whether Holsey’s lawyers were ineffective. It was whether their deficient performance prejudiced the outcome to the point there was a reasonable probability Holsey would not have been sentenced to death.

Judge Ed Carnes, writing the majority opinion, said the abundant aggravating factors — such as the fact Holsey killed a deputy to avoid arrest and had a prior armed robbery conviction — outweighed any additional mitigation evidence Holsey’s lawyers could have presented to the jury had they been doing their job.

Thanks to this post at How Appealing, I discovered that perhaps the most intriguing aspect of the panel's work is Judge Edmondson's concurring opinion, which begins this way:

I stand with Judge Carnes about the correct judgment in this appeal:
AFFIRM the District Court’s judgment to deny habeas corpus relief to the state
prisoner petitioner. I -- very respectfully -- do not join in Judge Carnes’s erudite
opinion. I stress that it is not because the opinion says something that I am sure is
wrong or I am sure is even likely wrong. I agree with much of the opinion, at
least. But the opinion says a lot and says more than I think is absolutely needed.

In my experience, longish opinions always present a strong possibility of
error lurking somewhere in the text. That the opinion writer is a skilled and
careful judge does not eliminate the risk. Furthermore, no one wishes to join in an
opinion that they do not understand fully. It is hard, time-consuming, painstaking
work for the panel’s other judges to check long opinions, line by line, cited case
by cited case. (Of course, always other cases are awaiting decision and also
demand the judges’ time and attention.) Moreover, long opinions, even if correct in every detail, generally make it harder for readers to separate a holding from
dicta (or less than dicta: words only of explication and nothing more). The
confusion of holding and dicta makes correctly deciding future cases more
difficult, when judges are looking back for precedents. Sometimes, the oddest
bits are lifted out of opinions -- especially the longer ones (often words as to some
peripheral point) -- and later quoted flatly as law: as if someone was quoting a
statute. So, I feel more comfortable today just focusing briefly on my own view of
a vital point.

September 14, 2012

"Three views on whether states should legalize marijuana"

This November, voters in Colorado, Oregon, and Washington will consider ballot measures to legalize and regulate marijuana, much as alcohol and tobacco are taxed and regulated. In this first in a series of "one minute debates" for election 2012, three writers give their brief take on the issue.

The 'yes' case is argued by Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML). The 'no' position is offered by David G. Evans, a special adviser to the Drug Free America Foundation. And a middle path is suggested by Kevin A. Sabet, who has worked on drug policy under three presidents of both parties.

As reported in this local article, headlined "San Diego Sex Offenders Upset Residency Limit," there mas a notable ruling earlier this week concerning California's sex offender residency restrictions. Here are the basics from the press report:

It is "unreasonable" and "oppressive" to forbid registered sex offenders from living within 2,000 feet of a school or park, a California appeals court ruled.

California voters adopted Proposition 83, also known as Jessica's Law, in 2006 to impose strict regulations on registered sex offenders. One provision in particular prohibits sex offenders from living within 2,000 feet of any school or park.

In 2010, the California Supreme Court ruled that the housing restriction applies to all paroled sex offenders, regardless of when they committed their crime, but the court said it did not have enough evidence to rule on law's constitutionality.

Following this ruling, William Taylor, Jeffrey Glynn, Julie Briley and Stephen Todd, all registered sex offenders living in San Diego County, challenged the residency restriction in Superior Court. All four parolees were unable to find housing after their release: Taylor and Briley lived in an alley behind the parole office on the advice of their parole agents, Todd lived in the San Diego riverbed with other registered sex offenders who had no place to live, and Glynn lived in his van.

In 2011, Judge Michael Wellington held an eight-day evidentiary hearing in which experts testified that 24.5 percent of San Diego residential properties comply with the Jessica's Law residency requirement, but most of these dwellings are single-family homes. Less than 3 percent of multifamily housing meets the requirement.

Wellington subsequently ruled that the parole condition was "unconstitutionally 'unreasonable'" because it "violated petitioners' right to intrastate travel, their right to establish a home and their right to privacy and was not narrowly drawn and specifically tailored to the individual circumstances of each sex offender parolee."

California's Fourth Appellate District affirmed Tuesday, finding that the law's "blanket enforcement as a parole condition in San Diego County has been unreasonable and constitutes arbitrary and oppressive official action."

The full 37-page appellate panel ruling is available at this link, and here are the final two substantive paragraphs:

Glynn and Taylor are registered sex offenders because each of them committed a sex crime against an adult; there is no hint of pedophilia in their histories. The exclusion of parolees with backgrounds similar to Glynn and Taylor from living near schools and parks does not substantially protect children, but as the record here shows, it has tremendous impact on such parolees' rights and liberty without bearing a substantial relation to their crimes. As in the cases of Glynn and Taylor, it prevented them from living with family members. In Taylor's case, it also decreased his proximity to needed services and treatment. By banning all sex offenders, the absolute residency restriction of Jessica's Law, when enforced as a parole condition, imposes a substantially more burdensome infringement on constitutional rights than is necessary to protect children from sex crimes. As such, the blanket enforcement of section 3303.5(b) as a parole condition in San Diego County has been unreasonable and constitutes arbitrary and oppressive official action.

As noted by the trial court, its orders do not prohibit CDCR from individually enforcing the residency restriction of Jessica's Law as a parole condition for registered sex offender parolees in San Diego County. The orders merely disallow CDCR from blanket enforcement of the residency restriction. Parole agents retain the discretion to regulate aspects of a parolee's life, such as where and with whom he or she can live. (§§ 3052, 3053, subd. (a).) Agents may, after consideration of a parolee's particularized circumstances, impose a special parole condition that mirrors section 3303.5(b) or one that is more or less restrictive. It is only the blanket enforcement — that is, to all registered sex offender parolees without consideration of the individual case — that the trial court prohibited and we uphold.

"Challenging the Death Penalty with Statistics: Furman, McCleskey and a Single County Case Study"

In the forty year history of the Supreme Court's modern death penalty jurisprudence, two cases — Furman v. Georgia (1972) and McCleskey v. Kemp (1987) — stand out above all others. Both cases turned on the Court's consideration of empirical evidence, but they appear to have reached divergent — even altogether inconsistent — results. In Furman, the Court relied on statistical evidence that the death penalty was infrequently applied to death-eligible defendants to hold that the Georgia death penalty scheme was unconstitutional under the Eighth Amendment. In McCleskey, the Court, despite being presented with statistical evidence that race played a significant role in death-charging and death-sentencing in Georgia, upheld the revised Georgia scheme and McCleskey's death sentence against Equal Protection and Eighth Amendment challenges. The McCleskey decision called into question the use of statistical evidence to challenge the death penalty.

In the present article, we report on a unique empirical study of the administration of the death penalty in Alameda County, California — the largest single-county death penalty study and the only study to examine intra-county geographic disparities in death-charging and death-sentencing. The data set, drawn from 473 first degree murder convictions for murders occurring over a 23-year period, compares death-charging and death-sentencing in the two halves of the county. During the study period, the two halves differed significantly in racial makeup — the population of North County was over 30% African-American, and of South County less than 5% African-American; and the two halves differed in the race of homicide victims — in North County, African-Americans were homicide victims roughly 4.5 times as often as Whites, while, in South County, Whites were homicide victims more than three times as often as African-Americans.

The study reveals that there were statistically significant disparities in death-charging and death-sentencing according to the location of the murder: the Alameda County District Attorney was substantially more likely to seek death, and capital juries, drawn from a county-wide jury pool, were substantially more likely to impose death, for murders that occurred in South County. We argue that, McCleskey notwithstanding, statistical evidence such as the "race of neighborhood" disparities found in the present study should support constitutional challenges to the death penalty under both the Equal Protection Clause and the Eighth Amendment.

September 13, 2012

Crime & Consequences has lots of good coverage here and here of the latest poll numbers from California concerning the initiative going before the voters to repeal the death penalty in the state. Short story is that the polling numbers suggests those favoring abolition have a up hill battle over the next two months to convince voters to vote for repeal.

Not reported by C&C, but via the data linked in this report, are the remarkable poll numbers showing overwhelming support for reforming California's severe Three-Strikes mandatory sentencing law (this is Proposition 36). According to the data, there is more than 80% support for three-strikes reform, and of those who indicate a strong or somewhat solid opinion, more than 50% support reform and less than 10% are against reform.

Montana is one of a number of western states that has been having, now for almost a decade, a wild legal and practical experience with medical marijuana legalization and regulation. This paragraph from the start of a new ruling from the Montana Supreme Court in Montana Cannabis Industry Association v. Montana, 2012 MT 201 (Mont. Sept. 11, 2011) (available here), provides this account of the legal basics:

In 2004, Montana voters approved the use of medical marijuana through the passage
of I-148, the Medical Marijuana Act. The 2004 Medical Marijuana Act left in place those
provisions in the Montana criminal code that make it illegal to cultivate, possess, distribute
or use marijuana, while simultaneously protecting authorized users of medical marijuana
from being prosecuted. Section 50-46-201(1), MCA (2009) (repealed 2011). In 2011, the
Montana Legislature, in response to a drastic increase of caregivers and medical marijuana
users, passed House Bill 161, which repealed I-148. The Governor vetoed House Bill 161,
and in response, the Legislature enacted Senate Bill 423, which repealed the 2004 Medical
Marijuana Act and replaced it with the Montana Marijuana Act (“MMA”), § 50-46-301 et
seq., MCA, which dramatically changed the landscape for the cultivation, distribution, and
use of marijuana for medical purposes.

Anyone interested in the law and policy of state marijuana prohibitions and regulations should be sure to read the lead opinion in Montana Cannabis Industry Association: the majority of the Montana Supreme Court sets forth a cogent and convincing explanation for why regulations in the new Montana Marijuana
Act do not violate various individual rights provisions of the Montana Constitution.

In addition, anyone interested in federalism and justiciability issues should be sure to read the dissenting opinion in Montana Cannabis Industry Association: Justice James Nelson sets forth a forceful and not-quite-convincing explanation for why he believes the Montana Supreme Court ought not have ruled in this case given the federal statutory prohibition on marijuana possession. Here is a key passage from Justice Nelson's dissenting opinion which I continue to ponder (with my emphasis added):

Stripped to its core, the remarkable premise underlying Plaintiffs’ request for relief in
this case is that they have a fundamental right under the Montana Constitution to engage in
conduct which is criminal under federal law. Indeed, no matter what this Court might hold
in this case or any of the other medical marijuana cases, the underlying assumption of
everyone involved is that the plaintiffs intend to go out and violate the federal Controlled Substances Act. That Montana’s courts have become complicit in this endeavor (by taking
up questions regarding the interpretation of Montana’s medical marijuana laws in the
absence of an actual underlying criminal prosecution) is shocking.

I disagree with the premise implicit in the Court’s approach — namely, that it is
appropriate for state legislatures to enact laws which purport to make lawful conduct which
federal law has already dictated is unlawful. Despite the Court’s, the Legislature’s, and the
Plaintiff’s efforts, marijuana possession and distribution cannot simultaneously be both
lawful and unlawful — except, perhaps, inside Schrödinger’s cat’s box. Indeed, it is
axiomatic that federal laws prevail over contrary state laws....

Under the Supremacy Clause, state law must give way to federal law in certain
circumstances, including “cases where compliance with both federal and state regulations is a physical impossibility.” Arizona, 132 S. Ct. at 2501 (internal quotation marks omitted).
Under federal law, marijuana is classified as a Schedule I drug. Gonzales v. Raich, 545 U.S. 1, 14, 125 S. Ct. 2195, 2204 (2005). This classification renders the manufacture,
distribution, or possession of marijuana a criminal offense. Gonzales, 545 U.S. at 14, 125 S. Ct. at 2204. It is a physical impossibility to comply with this federal law while, at the
same time, engaging in the use, possession, or distribution of medical marijuana which
Plaintiffs claim Montana’s Constitution and statutes allow. Of course, Plaintiffs could avoid
this conflict by simply refraining from engaging in such activities; however, they have
indicated a desire not to do so. In this circumstance, federal law prevails over state law.
Gonzales, 545 U.S. at 29, 125 S. Ct. at 2212 (“[L]imiting the activity to marijuana
possession and cultivation ‘in accordance with state law’ cannot serve to place respondents’
activities beyond congressional reach. The Supremacy Clause unambiguously provides that
if there is any conflict between federal and state law, federal law shall prevail.”). And thus
the question whether Plaintiffs’ use, possession, or distribution of marijuana is in compliance
with Montana law involves a purely academic (and therefore nonjusticiable) determination.

I suspect it is the substance of the law in question here that in part prompts Justice Nelson to claim to find "shocking" efforts by Montana's legislature and its judiciary to develop and review state criminal laws independent of federal criminal laws. That said, I wonder if others think there may be some force to the notion that state courts ought not even take up state marijuana legalization issue in the shadow of blanket pot prohibition at the federal level.

Perhaps shifting the conversation to gun rights might provide a useful perspective on these matters. Do readers think Justice Nelson would find "shocking" efforts by Montana's
legislature and its judiciary to develop and review a new state statute which provided, for example, that nonviolent low-level drug offenders and/or persons with domestic violence misdemeanor convictions could get a state gun permit a decade after completing their sentence? Such a statute would seek to legally authorize for state law purposes an activity that federal law right now makes illegal. Is there are argument that any effort to seek a clarification of the reach and application of such a gun law should be deemed "purely academic (and therefore nonjusticiable)" by Montana courts?

"Oregon's Death Penalty: The Practical Reality"

Governor John Kitzhaber’s suspension of the death penalty and his call to “all Oregonians to engage in the long overdue debate that [the death penalty] deserves” has provided a unique opportunity to examine some of the practical considerations implicated in the death penalty in Oregon and around the country. In this article, I hope to participate in this debate by setting forth a few of the pragmatic reasons why it is not worthwhile to maintain the death penalty in Oregon.

In Part I, I explain the history of the death penalty in Oregon. In Part II, I focus on wrongful convictions. Included in this section are stories of innocent people sentenced to death who were innocent of the crimes for which they were convicted, sentenced and imprisoned. Wrongful convictions have significantly changed the discussion of the death penalty around the country. Oregon, like most states, has wrongfully convicted and imprisoned innocent people and thus, there is always the possibility that Oregon could execute an innocent person. In Part III, I examine the costs to taxpayers of maintaining a death penalty system in Oregon and in other states, like Oregon, that rarely execute anyone. In part IV, I focus on Oregon’s inability to administer an effective death penalty — how changes in the law have contributed to Oregon’s lengthy, dysfunctional and costly death penalty system and how potential future litigation and changes to the law will only exacerbate these problems. And last, in Part V, I conclude with the recommendations that the Governor commute the sentences of those currently on death row and that he and the state legislature designate a committee to conduct a comprehensive review of Oregon’s death penalty system — a review designed to assess all aspects of Oregon’s death penalty, to identify its problems and determine whether solutions exist for its overhaul.

September 12, 2012

As reported in this local article, headlined "Trying juveniles as adults will be become tougher, N.J. Supreme Court rules," a split state Supreme Court has a real interesting ruling about court review of prosecutorial power to try juveniles as adults (a decision which, in my view, should be viewed largely as a sentencing decision). The opinion from the majority in State In the Interest of V.A., No. 068707 (Sept. 12, 2012) (available here), gets started this way:

In this appeal we review a decision by a county prosecutor to seek waiver of three juveniles, aged sixteen at the time of their offenses, to adult court for acts of delinquency that, as charged, were equivalent to aggravated assault, robbery, and second-degree conspiracy. A Family Part judge found probable cause that the juveniles committed the offenses but denied the waiver motion. The Appellate Division reversed, concluding that the Family Part overstepped its bounds. State ex rel. V.A., 420 N.J. Super. 302 (App. Div. 2011). In this matter, we are called on chiefly to address the standard of review to be exercised by a court reviewing such motions for waiver.

In 2000, the Legislature eased the conditions of waiver for juveniles, aged sixteen and over, who are charged with certain serious offenses, as were the juveniles here. See N.J.S.A. 2A:4A-26(a), (e). While a prosecutor’s decision to seek waiver of such juveniles is discretionary, the Legislature directed the Attorney General to issue guidelines for prosecutors to promote uniformity, thereby preventing arbitrary exercise of that discretionary authority. N.J.S.A. 2A:4A-26(f); see State v. J.M., 182 N.J. 402, 419 (2005) (observing that guidelines advance legislative goal of uniformity through avoidance of arbitrariness and abuse of discretion). Guidelines issued by the Attorney General identify the factors that prosecutors are to address in a statement of reasons to support such waiver decisions, see Attorney General’s Juvenile Waiver Guidelines (Mar. 14, 2000) (hereinafter Guidelines), and we require submission of the statement of reasons with a motion seeking waiver, J.M., supra, 182 N.J. at 419.

In a court’s review of waiver motions carrying such serious consequences for the juvenile who is waived up to adult proceedings, we hold that the abuse of discretion standard applies. The abuse of discretion standard is appropriately deferential to the prosecutor’s decision to seek waiver when the statutory conditions are present while simultaneously acting to curb arbitrariness and the abuse of discretionary authority, thereby promoting the legislative interest in uniformity.

An abuse of discretion review does not allow the court to substitute its judgment for that of the prosecutor. Rather, a review for abuse of discretion involves a limited but nonetheless substantive review to ensure that the prosecutor’s individualized decision about the juvenile before the court, as set forth in the statement of reasons, is not arbitrary or abusive of the considerable discretion allowed to the prosecutor by statute. Cursory or conclusory statements as justification for waiver will not suffice to allow the court to perform its review under the abuse of discretion standard because such statements provide no meaningful explanation of the prosecutor’s reasoning. Applying that standard, we further hold that, in the instant matter, the prosecutor’s explanation in the Statements of Reasons was, in certain respects, lacking in detail.

Therefore, we reverse and remand for a more full explanation by the prosecutor as detailed herein.

As reported in this brief local article, the "Pennsylvania Supreme Court will hear arguments on two cases today that could determine the fate of juveniles serving mandatory life without parole sentences." Here are the basics:

Pennsylvania has nearly 500 juvenile lifers -- the largest number in any one state.
“A lot of the juvenile lifers who are currently serving the sentence have currently filed post conviction petitions.”
Juvenile Law Center attorney Emily Keller says...

[T]he Pennsylvania Supreme Court must decide whether to apply Miller retroactively and, if so, what new sentence should apply. If the case applies to past cases, some of the inmates could eventually be released.
“Some of the clients that we represent have been serving these sentences for decades and really have come to terms with what they have done and have really matured as people.”

She says one example is 61-year-old Sharon Wiggins.
“She was convicted of a murder that occurred in 1968,” says Keller. “She’s the longest serving female inmate in the state of Pennsylvania. She’s gotten jobs while she’s been incarcerated, she’s been a mentor for other juvenile mentors for other women incarcerated at SCI Muncy.”

The Commonwealth argues that Miller should apply only to future cases and the new sentence should be life without parole or life with parole.

This much lengthier local article from this past weekend provides more background on defendant Wiggins under the headline "Ruling of a lifetime: Pa. woman, grown old in prison, could be set free." I have reprinted with this post that article's picture of Wiggins, who is obviously now a long way from being a "teenage offender."

I cannot yet find copies of the briefs filed in the Pennsylvania Supreme Court on this important and consequential issue; I will be grateful if any reader could help get them sent them my way (or put links in the comments if they are already available on-line).

As I explained in a series of prior posts right after the Miller ruling (some of which are linked below), whether and how Miller can and should be applied to long-ago sentenced juvenile murderers is an intricate and multi-layered legal question. I sincerely hope the Justices on the Pennsylvania Supreme Court are getting a lot of help sorting these issues out thoroughly from the parties and others in these cases: especially if this court issues a major ruling soon, its template for sorting through these matters could impact many cases nationwide as well as in the Keystone State. (As indicated in the title of this post, I am pretty sure (but not certain) that these cases are the first set of post-Miller petitions to get full examination by a state Supreme Court.)

Some related posts on Miller and its potential impact in PA and eslewhere:

"Leveraging Death"

The title of this post is the title of this great-looking new paper by Sherod Thaxton, which is now available via SSRN. Here is the abstract:

Empirical research addressing the use of the death penalty as leverage in plea negotiations is virtually nonexistent. This is particularly surprising given the fact that both plea bargaining and capital punishment have been the focus of much scholarly attention. The U.S. Supreme Court has explicitly approved guilty pleas induced out of fear of the death penalty, yet the impact of the threat of the death penalty on the likelihood of parties reaching a plea agreement is far from obvious. On the one hand, prosecutors, defense attorneys, and defendants may have especially strong incentives to plea-bargain in death-eligible cases. On the other hand, many of these advantages may be offset by forces pushing against compromise on both sides of the aisle precisely because the death penalty is an option, so the role the death penalty is playing in plea negotiations in the aggregate remains ambiguous.

To date, the only empirical study to explore this issue concluded that the threat of capital punishment does not impact the likelihood of reaching a plea agreement. Unfortunately the study suffers from several limitations that may have ultimately masked any true effect that the death penalty has on plea bargaining rates. This article reexamines this question using an originally constructed dataset of recent capital charging-and-sentencing decisions in Georgia (1993-2000) that is able to avoid many of the shortcomings of the sparse prior research. The results provide strong evidence that the threat of the death penalty has a robust causal effect on the likelihood of a plea agreement — the threat of the death penalty increases the probability of a plea agreement by approximately 20 to 25 percentage points across various model specifications. Not only is this finding important in its own right by illuminating capital defendants’ behavioral response to the death penalty, but it also has important implications for other purported benefits of plea bargaining in the capital context. The paper briefly considers one of the most commonly identified benefits of plea bargaining — cost-reduction — and concludes that the death penalty fails to deter sufficient numbers of murder defendants from opting for trial to offset the significant expense of a capital case and subsequent appeals.

September 11, 2012

What do we know for sure about marijuana usage and its health effects?

As readers may be aware from a variety of prior posts about marijuana and other (legal but harmful) drugs, I am always interested in hard and dependable data on the various tangible costs and benefits of different government regulatory schemes. I am generally in favor of moves to legalize and (sin) tax marijuana mostly because it seems American society has decided with alcohol and tobacco that the cost/benefit realities of the legal/regulate/tax/public health regime for these kinds of harmful substances are better than the cost/benefit realities of a prohibition/law enforcement regime.

For these reasons, I am pleased that it seems we are seeing more and more serious research about the potential health effects of marijuana usage, and this latest Reuters headline caught my attention on this front: "Marijuana smoking tied to testicular cancer: study." But parts of the article got me really wondering what we really know about actual marijuana usage (past and present) and its potential harms (present and future):

Young men who had smoked marijuana recreationally were twice as likely to be diagnosed with testicular cancer than men who have never used marijuana, according to a U.S. study.
Researchers whose findings appeared in the journal Cancer said the link appeared to be specific to a type of tumor known as nonseminoma.

"This is the third study consistently demonstrating a greater than doubling of risk of this particularly undesirable subtype of testicular cancer among young men with marijuana use," said Victoria Cortessis of the University of Southern California, Los Angeles, who led the study.
"I myself feel like we need to take this seriously now," she added, noting that the rates of testicular cancer have been rising inexplicably over the past century.

The research isn't ironclad proof that the marijuana is to blame, and even if it is, the danger isn't overwhelming. According to the American Cancer Society, a man's lifetime risk of getting testicular cancer is about one in 270 -- and because effective treatment is available, the risk of dying from the disease is just one in 5,000.

So far, little is known about what causes it. Cortessis said undescended testicles, in which the testes remain in the abdomen beyond the age of a year, are a risk factor. Both pesticide and hormone exposure have also been associated with the tumors.

Cortessis and her colleagues used data from 163 young men who had been diagnosed with testicular cancer and nearly 300 men in a comparison group without the disease. Both groups had been interviewed about their health and drug use between 1987 and 1994.
Among the men with cancer, 81 percent had used marijuana at some point, whereas that was the case for 70 percent of the comparison group.
...

It's not entirely clear how marijuana would influence men's cancer risk, but Cortessis said developing testicles may somehow respond to the drug's main active ingredient.

The new study is "interesting," said Carl van Walraven of the University of Ottawa in Canada, who has studied testicular cancer, but said it has a number of limitations.
For instance, it didn't find an increased risk among men with higher marijuana use, and it was relatively small.

Especially because I lack a scientific background to assess this research, I was drawn to the fact that this research reports that roughly 3 out of every 4 young men admitted to having used marijuana (an illegal drug) and that their use came during the very height of the just-say-no, drug war crusade. I am really surprised marijuana already so very high during that period of pot prohibition, and I suspect the actual use rate may be even higher because of the (justified?) reservations some may have about admitting past illegal drug usage.

One might drawn lots of conclusions from this latest bit of marijuana research, but I am more interested in hearing from commentors about what data or evidence they think is indisputable about past or present marijuana usage and/or the impact of such usage on public health. I suppose I might ask the same questions about tobacco and alcohol use, though to my knowledge these is not the same on-going robust public and policy debate about whether and how we should make these harmful substances now subject to a prohibition/law enforcement regime of regulation.

"Estimating Gender Disparities in Federal Criminal Cases"

This paper assesses gender disparities in federal criminal cases. It finds large gender gaps favoring women throughout the sentence length distribution (averaging over 60%), conditional on arrest offense, criminal history, and other pre-charge observables. Female arrestees are also significantly likelier to avoid charges and convictions entirely, and twice as likely to avoid incarceration if convicted.

Prior studies have reported much smaller sentence gaps because they have ignored the role of charging, plea-bargaining, and sentencing fact-finding in producing sentences. Most studies control for endogenous severity measures that result from these earlier discretionary processes and use samples that have been winnowed by them. I avoid these problems by using a linked dataset tracing cases from arrest through sentencing. Using decomposition methods, I show that most sentence disparity arises from decisions at the earlier stages, and use the rich data to investigate causal theories for these gender gaps.

I have long found that, in both the classroom and in other settings, discussion of discretion and disparity in the criminal justice treatment of different genders can often foster more dynamic and less polarizing discusson than when the focus is on race. For this reason (and many others), I hope to soon find time to consume this important new article and may well comment on it further.

Diverse headlines reporting diverse developments from diverse death penalty states

A busy day both in the news and in my life means I have to be content this morning to just provide this review of links to notable stories coming from a number of states concerning the administration of capital punishment:

September 10, 2012

"The Media's Reporting On Justice Is Criminal"

There is a canned, formulaic newspaper story about any criminal case. It can be repeated in every prosecution, no matter what the crime, no matter who the defendant.

Here’s how it goes: Judge X sentenced defendant Y to five years (or whatever the number). The prosecutor argued for 10 (or higher than the number the judge gave). The victim’s family is appalled. When interviewed, they stridently proclaim their outrage at the judge. The press then echoes that sentiment.

All concerned assume that the right sentence is the one the prosecutor wanted or the victim demanded. So when the judge sentences the defendant to less, they cry foul. Another lenient judge! Another liberal! Another blow against the “tough on crime” mentality!

Never do you see the opposite: a columnist decrying a sentence that was too high or a reporter noting that these sentencing lengths are just arbitrary numbers — five, 10, 15, 20 — without any relationship to what works to deter crime, what is cost effective, etc. And they are “just” numbers that will inevitably increase over time, precisely because they are contentless.

They do not reflect expert opinion about proportionality — for example, measuring relative sentences across crime categories or comparing nonviolent drug sentences to sentences for violent crime. They don’t consider alternative approaches. They don’t evaluate recidivism, whether drug treatment programs in certain instances will work better than incarceration....

We lead the world in imprisonment not just by a little — but by several orders of magnitude. Our nearest competitors are Rwanda and China, hardly good company. And the racial figures are even worse: At the end of 2010, black men had an incarceration rate of 3,059 sentenced prisoners per 100,000 U.S. black male residents. This rate was almost seven times higher than the incarceration rate for white men (456 per 100,000)....

Recently, a Suffolk County prosecutor criticized the Supreme Judicial Court for not requiring a judge whom the prosecutor believed to be too lenient to disclose his personal notes, records and diaries to justify his sentences. When was the last time a prosecutor was required to disclose why he chose to prosecute a defendant, or picked a given charge, or recommended a given sentence? The answer is never.

And, to a shocking degree, the prosecutor is picking numbers out of the air. Twenty years ago, we considered five years a very long sentence. In most European countries that is still the case. But now, in the United States, we increase sentences by fives. It’s like a betting game. Five does not send a message if it is what the defense lawyer wants. OK, I’ll raise you five more. Why five? Why not 10?...

To be sure, pundits are beginning to write about the unfairness of mandatory minimum sentences. They are beginning to notice the disproportionate sentences for African Americans and Hispanics. And in this depressed economy, the media is beginning to acknowledge that lengthy sentences, particularly for nonviolent drug offenders, are not remotely cost effective.

But those general observations are rarely reflected in media coverage of individual cases. And individual cases, particularly the celebrated ones, are what drive the legislative debate (think Megan’s or Melissa’s laws) — not a general analysis of the needs of the criminal justice system or the lack of a relationship between the declining crime rate and our ever increasing imprisonment rate.

New report examines what ACA can mean for corrections and public safety

I often tell my students that all legal and public policy issues always somehow are really sentencing and corrections issues in some way. (The 2000 election and the fights in Bush v. Gore are my favorite example: if not for broad felon disenfrachisement laws in Florida, it seems unlikely the popular vote in that state would have been so close.) For that reason (and others), I was pleased today to get this notice from The Sentencing Project about a new publication examining the impact and import of the Affordable Care Act for certain criminal justice matters:

• Expanded Health Care Coverage — The Affordable Care Act gives states the option of expanding Medicaid eligibility and makes prevention, early intervention, and treatment of mental health problems and substance use essential health benefits. In states that opt to expand Medicaid coverage, the Federal government will cover 100% of expenditures for the newly eligible population from 2014 to 2016, with the amount of federal funds decreasing yearly to 90% by 2020 and thereafter.

• Reducing Recidivism — Because of the role mental health and substance abuse problems play in behaviors that lead to incarceration and recidivism, the Affordable Care Act could help states reduce the number of people cycling through the criminal justice system.

• Addressing Racial Disparities — The new legislation may contribute to reducing racial disparities in incarceration that arise from disparate access to treatment.

"A father's plea: End the war on drugs"

The title of this post is the headline of this new commentary by Javier Sicilia appearing at CNN. Here is how it begins:

Why was my son murdered? He was 24, and he had never tried drugs. He didn't even smoke. He had paid half his university costs with a sports scholarship and was working as administrative staff at a cardiac clinic in Morelos, Mexico. Why then was my son suffocated by hit men from the Gulf Cartel? Why did his six friends, just like him, die at his side?

The answer, you may tell me, is obvious. "Because drug traffickers are bad, and must be stopped." The answer, however, is not that simple. If it were I would not be leading a caravan for peace across the United States. Let's pose the question differently. If Mexico's President Felipe Calderon had treated drug abuse as a question of public health rather than a matter of national security, might my son and his friends still be alive today? If instead of declaring war on drug trafficking, Calderón had pursued a bilateral agenda with the United States to decriminalize drugs and regulate their use, is it possible that they and tens of thousands of other young people killed in the last six years would be still be with us?

Declaring a war obliges one's enemy to build up defensive armies. And if the principal tactic of that war is identifying and taking out crime syndicate leaders, it leaves their decapitated, but ever profitable, organizations adrift. President Calderon went on the offensive against cartel "capos." The result was a proliferation of criminal gangs.

My son, Juan Francisco, and his friends were kidnapped, tortured and killed by one of those new splinter gangs, who did the hit for just $25,000 and two pickup trucks.

Why? One of the young men killed with my son had complained about a theft in the valet parking of a bar that turned out to be managed by one of the criminal gangs untethered after drug lord Beltrán Leyva was killed and his lieutenants scattered. "Comandante H," a former Beltrán Leyva confidante, was recently apprehended by authorities, telling his captors, "I was quite outraged when they murdered Sicilia's son and his friends. Murdering innocent people is not our business. Our business is drugs. But I was fleeing, and I could not do anything."

The horrific story of my son and his friends is one of thousands like it in our country. More than 60,000 people have been killed and 20,000 have disappeared because of the myopic war strategy Felipe Calderon and the Mexican security forces have pursued since 2006. Some murder estimates are even higher.

That is why I stopped writing poetry and took to the streets with thousands of other grieving Mexicans to make my son, and other victims like him, visible. Now, I'm traveling across the United States with members of dozens of families broken by violence to seek common cause with Americans whose communities, especially the African American and Latino communities who have so warmly hosted us, that have been battered by the violence and the criminalization that this same counterproductive war inflicts on the U.S. side of the border.

This news report from Korea, which is headlined "How should Korea combat pedophilia?", provides a useful reminder that America is not exceptional in its intense sentencing policy response to high-profile sex offenses against children. Here are excerpts:

The kidnap and rape of a 7-year-old girl in Naju, South Jeolla Province, earlier this month has reopened the debate on how to deal with society’s most reviled criminals. Like the case of Cho Doo-soon, who brutally raped an 8-year-old girl in 2008, Ko Jong-seok’s heinous act has sparked a raft of proposals from lawmakers and law enforcement to deal with those who prey on children. In the days after the attack, the National Police Agency announced one month of increased police patrols and a crackdown on child pornography, while a lawmaker from the Saenuri Party, Rep. Park In-sook, proposed a bill that would allow for the physical castration of child rapists.

“How much these children suffer is unbelievably much, much more than the penalty they (the perpetrators) receive from the judge,” Park, a cardiologist by profession, told The Korea Herald on Friday.
Park rejected the suggestion that the procedure would be at odds with the principles of a civilized society, adding that it has few side effects and does not even require a general anesthetic.

“These children live with permanent damage, physically, mentally, and psychologically, neurologically … and economically … So if you compare the human rights of these criminals with the victims, whose human rights are more important? Who should be protected? It is just incomparable,” she said, pointing out that Finland, the Czech Republic and Germany, among other countries, allow the practice.

Park, who has also proposed the introduction of a smartphone application that would alert users to the location of convicted sex offenders within a 1 km radius, added that a recent opinion poll showed that 96 percent of Koreans support her castration bill proposal.
“This is the philosophy I had all my life but I had no chance to speak to the public until I came to the National Assembly,” she said. “Also, the important thing is these crimes are getting worse and becoming more often.”

When it comes to an effective legal response to those who target children, understanding more about the scale and nature of the problem is crucial, said Korean Institute of Criminology research fellow Kim Han-kyun.
“The first step we need to take is to study and research the real reality of pedophiles and sex offenders against children in our society, then we may have specific and substantive measures against pedophiles,” said Kim. “But the problem is no one knows yet how many pedophiles there are in our society and (how) serious the problem of pedophiles is now at the moment in our society.”

While it is unclear how many pedophiles exist in Korea ― U.S. estimates put the figure there at around 4 percent of the population ― recorded sex crimes against the young have risen in recent years. The number of cases of sexual assault and rape against minors soared from 857 in 2007 to 2,054 last year. Even more strikingly, the offender in 43 percent of cases from January to June 2011 involving victims under 13 received a suspended sentence. Where prison sentences have been applied, they have often been seen by the public as excessively lenient. Cho Doo-soon’s attack on the 8-year-old known only as Na-young led to a 12-year prison sentence, a punishment widely denounced as too light for a crime that left a school girl with permanent, life-changing injuries.

“The statutory punishment on sex offenders and sex offenders against children is severe enough but the problem is the sentencing,” said Kim. “Although South Korean legislators have made very strict and severe punishment, the judges have given soft sentences. I think the sentencing guidelines for sex offenses against child should be amended for more harsh and strict sanctions on such offenders.” A conservative, male-dominated judiciary is likely part of the reason for soft sentencing, added Park....

While pedophilia has long been termed a mental disorder, an increasing body of opinion in recent years has defined it as an unalterable sexual orientation, calling into question the effectiveness of treatment.
In the U.S., about 50 percent of convicted pedophiles reoffend, though programs to treat the predilection have shown mixed success.

Explanations for the root causes also differ, ranging from childhood abuse to less white matter in the brain.
“Pedophilia is related to low self-esteem, poor social skills and impaired self-concept, psychologically,” said Park. “The patients tend to be very shy and passive-aggressive when it comes to personality. Some doctors say this disorder is related to inappropriate attachment with the primary care-giver in childhood. Personally, I reckon poor cognitive inhibition of deviated sexual fantasy is the main cause of actual child sexual molestation.”

September 9, 2012

Should states help death row prisoners donate their organs?

The title of this post is prompted by this piece appearing in today's New York Times under the headline "Considering Death Row for Organs." Here are excerpts:

Christian Longo, a death row inmate, [has] started a campaign to allow the condemned to donate their organs.
Mr. Longo argued that a new execution protocol that many states — including Texas — have adopted leaves inmates’ organs viable for transplantation.

“While I can potentially help in saving one life with a kidney donation now, one preplanned execution can additionally save from 6 to 10 more lives,” Mr. Longo wrote in a plea that Oregon officials denied.

No state allows death row inmates to donate their organs. Although Texas recently abandoned a three-drug cocktail in favor of a single-drug method for execution, the Texas Department of Criminal Justice said it did not intend to change its policy. There are 11,000 Texans on the organ transplant waiting list.

Criminal justice and medical experts say that the idea of recovering organs from willing convicted murderers is fraught with moral, ethical and medical challenges that make it unlikely to ever be an option.
“It’s complicated in ways that are very messy and very fuzzy,” said Richard C. Dieter, executive director of the nonprofit Death Penalty Information Center....

The prospect of death row organ donation, though, prompts several questions, said Dr. David Orentlicher, a co-director of the Hall Center for Law and Health at Indiana University’s Robert H. McKinney School of Law. Is an inmate giving free and informed consent, or is he hoping to win favorable treatment? Would a donation affect jurors in murder cases who are weighing the death penalty versus life sentences? Or prosecutors deciding whether to seek the death penalty? Or governors deciding whether to grant clemency?

There is also the possibility that allowing death row organ donation could lead jurors to issue more death sentences, Dr. Orentlicher said.
For prospective recipients, there are emotional and mental considerations, he added.
“People might say, ‘Gosh, I’m walking around with the organ of a murderer,’ ” he said. “It may be irrational, but I suspect that’s lurking there.”...

Even if all the moral, ethical and medical questions could be adequately addressed, he said, the yield of usable organs from death row inmates is likely to be small.
“I think there are avenues other than prisoners that the effort expended toward trying to increase donation would be better spent,” Mr. Rosson said.

Montana state judge finds state's execution protocol unconstitutional

As reported in this local article, late last week a state "judge [said] Montana must change the way it executes prisoners after ruling that the current method is unconstitutional." Here is more:

The decision came in the case of Ronald Allen Smith, a Canadian citizen from Red Deer, Alberta, who is awaiting execution. The American Civil Liberties Union had filed the case in 2008, arguing that lethal injection protocol amounts to cruel and unusual punishment under the U.S. and Montana constitutions.

Helena District Judge Jeffrey Sherlock ruled Thursday that aspects of it fail to pass constitutional muster.
He said the protocol doesn’t ensure qualified individuals are making key decisions, such as verifying that the inmate is unconscious and incapable of feeling pain before administration of the death drugs. Sherlock said the warden is charged with that decision, although there is no training requirement in place to ensure he can properly determine the inmate is unconscious.

The judge said the job requirements for the setup officer are also lacking. And he pointed out there is inconsistency between what state law requires of an execution procedure, and what the Department of Corrections manual says.

But the judge said needed changes can be easily made by the state — although it could require legislative changes if the state law on the method needs adjustments to comply with requirements. The Legislature meets again in January.

State assistant attorney general C. Mark Fowler said his office is studying the opinion and deciding what options there are to modify the protocol. In the meantime, no executions are scheduled.
“Judge Sherlock’s ruling upholds most of Montana’s lethal injection protocol as constitutional,” Fowler said in a statement. “Modifying the three areas of concern identified by the court can, in the judge’s words, be done ‘easily’ and ‘quickly’ and ‘if done, the modified protocol could not be found in violation of the Montana Constitution.'”...

The ACLU said it thinks changes to state law by the legislature will be needed. Such changes, which require a bill to pass both chambers of the legislature and clear the governor’s desk, will be a more time-consuming and difficult task for the state than a simple rewrite of Corrections Department procedures. “We are pleased that the court recognizes the insufficiencies of the state’s lethal injection protocol and that those insufficiencies create a situation where executions could inflict pain and suffering,” ACLU attorney Ron Waterman said in a statement. “If the state insists on carrying out this most extreme sentence, it has an obligation to do so in a manner that upholds the U.S.and Montana Constitutions.”